Watchdogs and whistleblowers: how NT and Vic hope to restore public trust

By Stephen Easton

February 8, 2018

Northern Territory Attorney-General Natasha Fyles has made it clear that “restoring trust in government” is a key goal for the Independent Commissioner Against Corruption, which is expected to be running by mid-year, while Victoria hopes its own integrity reforms can have a similar effect.

The nascent NT ICAC received its investigative powers this week in a secondary piece of legislation, which also broadened the relevant definition of a “public officer” to ensure contractors, ministerial advisers, and anyone else working on behalf of the government are covered.

The commissioner will be able to apply for warrants to conduct covert undercover operations, tap telecommunications and use surveillance devices. The series of amendments to existing laws that passed this week also give the ICAC the broad access to government institutions and information sources it needs to conduct its investigations.

The watchdog will be able to use the territory’s witness protection program, and the penalties for some corruption offences have been increased. The maximum sentence for offering, giving, requesting or receiving a bribe has gone up from seven to 10 years, for example.

“Advancing secret personal interests will also be an offence that could attract a sentence of up to 7 years imprisonment,” Fyles said in a statement.

“This requires not only a failure to disclose a conflict, but acting on that conflict and obtaining a benefit as a result. These amendments increase accountability – restoring trust and integrity in government.”

Trust in government, along with most other institutions, professions or sectors of society, appears to have been rapidly declining all over Australia, and around the world, as the latest update of the popular Edelman Trust Barometer shows once again.

Quite apart from that global trend, the Attorney-General blamed the previous government, which did appear rather dysfunctional and also faced allegations of corruption, for a more acute and localised loss of public confidence in the territory’s public institutions.

“Territorians deserve trust in government and we promised to rebuild that by building a strong and independent ICAC, powerful enough to expose corrupt conduct,” Fyles said.

Legislation creating the NT ICAC passed in December. Fyles said the first commissioner would be appointed in the first half of the year by an “independent” panel, whose independence has been questioned by the opposition.

Last year, there was a proposal that South Australian ICAC Bruce Lander be appointed to the role on a part-time basis, and there is certainly something to be said for having someone from interstate in such a role for small tight-knit jurisdictions like the two territories.

An interesting effect of appointing Lander would be that he would have far stronger powers in the NT, including the ability to hold public inquires, than he does currently in SA.

As well as “improving public confidence that improper conduct will be detected and dealt with appropriately” one of the objects of the tough new integrity regime is encouraging whistleblowers to come forward, and protecting them from reprisals. The ICAC Act takes over from the territory’s public interest disclosure legislation, which has been repealed as a consequence.

Integrity reform down south

Meanwhile in Victoria, the government also says it is working on improving public trust, by modifying its public sector whistleblower scheme and its general integrity system with an amendment bill that is being debated in Parliament this week.

“The reforms will help to build and maintain community trust in the public sector by promoting the highest possible standards of public sector conduct in a modern and transparent framework,” according to a statement from Special Minister of State Gavin Jennings.

Under the package, whistleblowers will be not be liable for court costs if they fail to win compensation for alleged reprisals under the Protected Disclosure Act (which is to be renamed the Public Interest Disclosure Act) and confidentiality provisions have been relaxed to allow greater access to support services.

Under the changes, a person claiming to have suffered detriment as a reprisal for a public interest disclosure would only have costs awarded against them if the court decided their claim was vexatious, or that their litigation was conducted unreasonably.

Other key aims of the reforms are “expanding and clarifying the types of public sector improper conduct that a person can disclose” and “increasing the pathways for making disclosures and simplifying confidentiality obligations”, according to the minister.

The VO, IBAC and the Victorian Inspectorate which oversees the integrity agencies all get more budgetary independence, much like the auditor-general.

There are also changes to the Victorian Ombudsman’s legislation, “providing them with clear jurisdiction over publicly funded services and improving their powers to deal with complaints” and measures to enhance co-operation between the state’s integrity bodies.

This includes an attempt to improve “fairness” of the process of being called in by the Independent Broad-based Anti-corruption Commission:

“These changes include improving fairness safeguards for IBAC public examinations, strengthening the Victorian Inspectorate’s oversight of coercive powers in integrity bodies and streamlining parliamentary oversight by merging the Accountability and Oversight Committee with the IBAC Committee.”

Sometime before June, the federal Parliament is expected to vote on legislation to modify Commonwealth whistleblower legislation, which will mainly affect the private and non-profit sectors, but may also enhance protections for public sector employees making public interest disclosures.

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